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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Eagle West Communications, Inc.
) File Number: EB-06-SD-177
Operator of Cable Television System
) NAL/Acct. No.: 200732940001
Community Unit ID: AZ0342
) FRN: 0004979126
Physical System ID: 002292
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 8, 2006
By the District Director, San Diego District Office, Western Region,
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Eagle West Communications, Inc. ("Eagle West"), owner of a cable
system serving Mesa, Arizona, apparently willfully and repeatedly
violated Section 11.35 of the Rules ("Rules") by failing to ensure the
operational readiness of the Emergency Alert System ("EAS") equipment
in its Mesa, Arizona, cable system. We conclude, pursuant to Section
503(b) of the Communications Act, as amended ("Act"), that Eagle West
is apparently liable for a forfeiture in the amount of eight thousand
2. On May 16, 2005, an agent of the Enforcement Bureau's San Diego Office
attempted to inspect the operational readiness of the EAS equipment
installed at Eagle West's cable television system serving Mesa,
Arizona. During this inspection, the San Diego agent found that the
system's EAS equipment, including both the encoder and the decoder,
had been purchased and was delivered to the cable system's head-end,
but was never installed. The agent orally warned the cable system's
Senior Technician that the EAS equipment must be installed and made
operational as soon as possible.
3. On June 5, 2006, the San Diego agent returned to the Eagle West cable
system serving Mesa, Arizona, and attempted to inspect the operational
readiness of the EAS equipment. The agent spoke with a manager from
Eagle West who acknowledged to the agent that Eagle West had still not
installed or made operational the EAS equipment at its Mesa, Arizona,
system. Upon returning to the San Diego office, the agent reviewed the
Commission's records and determined that several smaller cable systems
in Arizona owned by Eagle West were granted temporary waivers of EAS
requirements. However, there is no record that a waiver was requested
or granted for the Eagle West cable system serving Mesa, Arizona.
4. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
5. The Rules provide that every cable television system is part of the
nationwide EAS network and is categorized as a participating national
EAS source unless the station affirmatively requests authority to not
participate. The EAS provides the President and state and local
governments with the capability to provide immediate and emergency
communications and information to the general public. State and local
area plans identify local primary sources responsible for coordinating
carriage of common emergency messages from sources such as the
National Weather Service or local emergency management officials.
Required monthly and weekly tests originate from EAS Local or State
Primary sources and must be retransmitted by the participating
6. Section 11.35 of the Rules requires all cable television systems to
ensure that EAS encoders, EAS decoders and attention signal generating
and receiving equipment is installed and operational so that the
monitoring and transmitting functions are available during the times
the station is in operation. Cable systems must also determine the
cause of any failure to receive required monthly and weekly EAS tests,
and must indicate in the station's log why any required tests were not
received and when defective equipment is removed and restored to
7. Section 11.61(a)(1) and (2) of the Rules requires cable television
systems to (a) receive monthly EAS tests from designated local primary
EAS sources and retransmit the monthly test within 60 minutes of its
receipt and (b) conduct tests of the EAS header and EOM codes at least
once a week at random days and times. The requirement that stations
monitor, receive and retransmit the required EAS tests ensures the
operational integrity of the EAS system in the event of an actual
disaster. Appropriate entries must be made in the broadcast station
log as specified.
8. Eagle West had EAS equipment available to install in its Mesa,
Arizona, cable system, and was warned by a San Diego agent orally that
they must make their EAS equipment operational, however, Eagle West
failed to do so. Consequently Eagle West's violation is willful. The
violation occurred on more than one day, therefore, it is repeated.
Based on the evidence before us, we find Eagle West apparently
willfully and repeatedly violated Section 11.35 of the Rules by
failing to install and make operational EAS equipment in its cable
system serving Mesa, Arizona.
9. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for operating without an instrument of
authorization is $8,000. In assessing the monetary forfeiture amount,
we must also take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors, we find that Eagle West is apparently liable
for a forfeiture of $8,000.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314, and 1.80 of the Commission's Rules, Eagle West Communications,
Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of eight thousand dollars ($8,000) for violation of
Section 11.35 of the Rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Eagle West
Communications, Inc., SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
12. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego District
Office, 4542 Ruffner St., Suite 370, San Diego, CA 92111, and must
include the NAL/Acct. No. referenced in the caption.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
15. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Eagle West Communications, Inc., at
its address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
San Diego District Office
47 C.F.R. S 11.35.
47 U.S.C. S 503(b).
See Report and Order, Amendment of Part 11of the Commission's Rules
Regarding the Emergency Alert System, 17 FCC Rcd 4055, 4083 (2002) (the
Commission will continue to grant waivers of the EAS rules to small cable
systems on a case-by-case basis upon a showing of financial hardship);
Request for Waiver of Section 11.11(a) of the Commission's Rules,17 FCC
Rcd 20108 (EB 2002) (Several Eagle West cable systems granted 36 month EAS
waivers in Arizona and New Mexico, until October 2005; no waiver was
requested or granted for the Eagle West Mesa, Arizona, system); Public
Notice: EAS Waiver Extensions Granted To Very Small Cable Systems, DA
06-1373, 2006 WL 1826176 (rel. July 3, 2006) (no EAS waivers extensions
for any Eagle West cable systems requested or granted).
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'repeated', when used with reference to the
commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. SS 11.11 and 11.41.
47 C.F.R. SS 11.1 and 11.21.
47 C.F.R. S 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
47 C.F.R. S 11.35(a), (b).
The required monthly and weekly tests are required to conform to the
procedures in the EAS Operational Handbook. See also, Amendment of Part 11
of the Commission's Rules Regarding the Emergency Alert System, 17 FCC Rcd
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 11.35.
See 47 C.F.R. S 1.1914.
Federal Communications Commission